Citation Nr: 21071801 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 14-41 173 DATE: December 1, 2021 ORDER Entitlement for a compensable rating for bilateral hearing loss since May 12, 2012 is dismissed. FINDING OF FACT The Veteran perfected an appeal of the under the modernized system in September 2020, thereby withdrawing the appeal from the legacy adjudication system. CONCLUSION OF LAW The Board lacks jurisdiction over the issue of entitlement to a compensable rating for bilateral hearing loss since May 12, 2012 under the legacy system. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1977 to October 1981 and February 2003 to July 2004, to include a deployment to Iraq. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement for a compensable rating for bilateral hearing loss since May 12, 2012 is dismissed. The matter last appeared before the Board in November 2020 at which time the claim of entitlement to a compensable rating for bilateral hearing loss sinc May 12, 2012 was denied. The Veteran appealed the denial to the Court of Appeals for Veteran's Claims (Court). In June 2021, the Court granted a Joint Motion for Remand (JMR), in which the Parties agreed that the Board erred when it did not determine whether it had jurisdiction to review Veteran's claims in light of his September 2020 opt-in to the modernized review system under the Appeal Modernization Act (AMA). The Parties agreed that remand was warranted for the Board to make a finding of fact regarding whether it has jurisdiction to issue a decision under the legacy appeal system in light of Veteran submitting Form 10182 Notice of Disagreement (NOD) in September 2020, opting into the AMA. King v. Nicholson, 19 Vet. App. 406, 410 (2006) (citing 38 U.S.C. § 7104(d)(1). The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. Here, the Board finds that it lacked jurisdiction to adjudicate the claim under the legacy system when it issued the November 2020 rating decision. Illustratively, in this case, the Board notes that the Veteran initially filed his claim under the legacy system when the VA received the Veteran's claim of entitlement to service connection for bilateral hearing loss on November 15, 2011. A May 2012 rating decision issued granting the claim at a noncompensable rating. The VA received the Veteran's NOD with the noncompensable rating in August 2012. The claim was denied in a September 2014 statement of the case (SOC). The Veteran formally appealed to the Board in November 2014. The appeal was certified to the Board in May 2016. The Board issued a July 2018 decision denying entitlement to a compensable rating for bilateral hearing loss from November 15, 2011 to May 12, 2012 and remanded the issue of entitlement for a compensable rating for bilateral hearing loss since May 12, 2012. The RO issued an August 2020 supplemental SOC (SSOC) denying the claim. The matter was returned to the Board on September 19, 2020 and placed on the Board's docket on September 28, 2020. Nevertheless, on September 23, 2020, the Veteran's attorney faxed a VA Form 10182 NOD, selecting the Evidence Review Lane, to the Veterans Intake Center. However, the Veteran's September 2020 VA Form 10182 NOD was uploaded to the Veteran's Benefits Management System (VBMS) and associated with the claims file on January 26, 2021. Hence, in the interim, the Board issued the November 2020 decision. There are currently two different ways to perfect an appeal to the Board. First, there is the legacy system for VA decisions issued prior to February 19, 2019. Under the legacy system, the formality of perfecting an appeal to the Board is part of a clear and unambiguous statutory and regulatory scheme that requires the filing of a NOD, specifically VA Form 21-0958, issuance of a SOC, and filing of a formal appeal thereafter. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 19.20, 19.21, 19.22. Second, for a valid opt-in to the AMA system from a rating decision issued prior to February 19, 2019, the Veteran must have first filed a timely legacy NOD, have been issued a SOC after February 19, 2019, and then filed a timely VA Form 10182 NOD. An appeal to the Board of a rating decision by the Agency of Original Jurisdiction (AOJ) consists of a NOD submitted to the Board in accordance with the provisions of 38 C.F.R. §§ 20.202-20.204. 38 C.F.R. § 20.201. (Continued on the next page) In this case, the Veteran's utilization of VA Form 10182 NOD in September 2020 for a rating decision issued prior to February 19, 2019 and SSOC issued in August 2020 was proper for the opting into the AMA system. Hence, the Veteran timely opted into the AMA system, selecting the Evidence Review Lane and the Board honors such request to opt-in to the AMA system. Thus, due to the procedurally proper and timely filing of the VA Form 10182 NOD in September 2020, the Board did not have jurisdiction to adjudicate the merits of the appeal at the time of the November 2020 Board decision under the legacy system and must dismiss the claim. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.55, 20.201, 20.202(d), 20.104(c). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.